Keep reading for our interview with an American Civil Liberties Union (ACLU) attorney who is the challengers' counsel of record.
President Trump is headed to Supreme Court this morning to see up close when his bid to end birthright citizenship falls into the justices' hands.
The face-to-face moment will make Trump the first known sitting president to attend an oral argument.
It raises the stakes in a moment when the Supreme Court was already preparing for one of its most direct confrontations yet with Trump on his second-term agenda, after months of emergency rulings that have largely sided with the president.
The justices will weigh whether Trump's Day 1 executive order clamping down on the long-held principle of birthright citizenship is legally sound.
The directive restricts birthright citizenship for children who don't have at least one parent with citizenship or permanent legal status.
Its consequences, immigration advocates warn, could be dire. But the Trump administration says bestowing citizenship on virtually anyone born on U.S. soil incentivizes illegal immigration and that the Constitution has, for decades, been misread.
Here are five things to watch out for during the arguments.
1. The impact of Trump's attendance
Trump's attendance has become a last-minute wildcard for the argument.
"And I'm going," the president said in the Oval Office on Tuesday when asked about the case.
"I think so, I do believe," Trump said, "because I have listened to this argument for so long."
His official White House schedule has him at the Supreme Court for the 10 a.m. arguments.
It's common for plaintiffs or even sometimes administration officials to sit in for an argument. But they are often sat in the back of the room, and it's not always clear the justices realize they are there.
The justices will easily recognize Trump, of course, not to mention his accompanying Secret Service detail.
The unprecedented moment comes as Chief Justice John Roberts attempts to keep the court above the political fray, even as the president steps up his criticisms.
Last week, Roberts during a public talk condemned "dangerous" personal attacks on judges, saying they have "got to stop." The chief did not name Trump, but the comment came after the president called for Republican lawmakers to pass a crime bill cracking down on "rogue judges," whom he derided as "criminals."
Trump in particular has intensified attacks against the high court recently, including some of his own appointees. The president remains enraged by the court's tariffs decision, and he is now turning his attention to the birthright citizenship battle.
On Monday, Trump wrote on Truth Social that birthright citizenship is "not about rich people from China," but instead, the "babies of slaves." He blamed courts for interpreting the law as anything otherwise, saying "dumb judges and justices will not a great country make."
"The World is getting rich selling citizenships to our Country, while at the same time laughing at how STUPID our U.S. Court System has become (TARIFFS!)," Trump wrote.
Trump has been in the Supreme Court twice before, for the investiture ceremonies of two of his court nominees.
But the president has long expressed a desire to attend oral arguments involving him. He wanted to go to the Supreme Court's presidential immunity arguments, but he was on criminal trial in New York at the time and the judge there didn't let him.
And when tariffs came before the court earlier this year, Trump floated going before opting against it.
Now, he is poised to finally make his appearance.
2. How broadly the justices interpret Wong Kim Ark
An 1898 Supreme Court precedent, United States v. Wong Kim Ark, will loom large. Watch if the justices think Trump's order complies with it. If they do, that's a good sign for the president.
In that decision, the court ruled Wong Kim Ark was a citizen. He was born in San Francisco to Chinese citizens.
More than 125 years later, the challengers to Trump's executive order say that precedent is the start and end of their case.
The liberal justices already signaled sympathy last year, when the case came to them to decide if judges could issue nationwide injunctions.
"As far as I see it, this order violates four Supreme Court precedents," Justice Sonia Sotomayor said at the time.
As Justice Elena Kagan peppered the government with questions, she told its lawyer to "just assume you're dead wrong."
The administration hopes to convince at least five justices that the challengers overread the precedent. The administration says it only applies to noncitizen parents with permanent residence in the U.S. That's not the case for migrants in the country illegally.
"That limit was central to the analysis; references to domicile appear more than 20 times in the opinion," Solicitor General D. John Sauer wrote in court filings.
3. Which scholars the justices namedrop
Trump's executive order and its domicile requirement upend the conventional understanding of the 14th Amendment, igniting a debate among legal scholars.
Watch to see if the justices signal agreement with the research of conservative professors who've defended the president's order. That would be a good signal for Trump.
Ilan Wurman, a University of Minnesota professor, is arguably the most prominent name to watch.
Some other allies to listen for: Georgetown University professor Randy Barnett, New York University professor Richard Epstein, University of Richmond professor Kurt Lash and John Eastman, who is arguably most known for his efforts to block certification of the 2020 presidential election but has long argued the Citizenship Clause has been misinterpreted.
The American Civil Liberties Union will take the lectern to argue the other side on Wednesday. They have plenty of allies, too.
The list to watch includes professors like Northern Illinois University professor Evan Bernick, Boston University professor Jed Shugerman and Georgia State University professor Anthony Michael Kreis. Groups like the Cato Institute also oppose Trump's order.
4. If the justices express practical concerns
The Supreme Court didn't opine on the legality of Trump's order last year when the justices got involved to decide if judges can issue universal injunctions blocking presidential policies nationwide.
However, Justice Brett Kavanaugh at those oral arguments previewed concerns about the practical consequences for when the merits reach the court.
Watch on Wednesday to see if he raises alarm again, and if any of the other conservative justices do the same.
"What do hospitals do with a newborn? What do states do with a newborn?" Kavanaugh grilled Sauer, the solicitor general, last year.
As Sauer suggested federal officials would have to figure it out, Kavanaugh kept coming with follow-up questions.
"How?" "Such as?" "For all the newborns?" he pressed at points.
"Again, we don't know because the agencies were never given the opportunity to formulate the guidance," Sauer eventually told him.
Look out if Sauer on Wednesday has any more details on how it would play out to assuage Kavanaugh's concerns.
5. If the justices focus on a 1940 law
Watch to see if the justices focus on the Constitution or statute.
The primary focus of the case is whether Trump's executive order violates the Constitution's 14th Amendment, which was ratified following the end of the Civil War.
But the justices have a second option. They could merely rule Trump's policy violates a 1940 statute Congress passed that codified the 14th Amendment.
The challengers say even if Trump is right on the Constitution, the justices should adopt the prevailing understanding Congress had when it copied the language. And they argue that understanding would've been citizenship extended to virtually anyone born on U.S. soil.
Click here to dive deeper on the statutory route the court could take.
No comments:
Post a Comment